Meeting of April 17, 2007, Washington
D.C. on Perspectives on Work/Family Balance and the Federal Equal Employment Opportunity Laws

Statement of Elizabeth Grossman

Introduction

Chair Earp, Vice Chair Silverman, and Commissioners, thank you for allowing me the opportunity to participate in this important hearing on issues of work/family balance. My testimony will focus on three subjects. First, it is abundantly clear that pregnancy discrimination continues to be a problem in today’s workforce, including issues of discrimination against women as caregivers. Second, I will share some of the pregnancy discrimination lawsuits handled by the New York District Office which have touched upon the issue of discrimination against women as caregivers. Third, I will discuss the emerging nationwide trend of an increase in charges and lawsuits directly challenging discrimination against those who request that their employer permit a work/family balance, under both Title VII and the Americans with Disabilities Act.

Pregnancy Discrimination Today

Almost 29 years after the Pregnancy Discrimination Act of 1978 was passed, the Commission continues to investigate and litigate charges involving pregnancy discrimination in record numbers. Pregnancy discrimination charge filings with the EEOC and state and local agencies have increased 45% between Fiscal Year 1992 and Fiscal Year 2006 from 3,385 to a record 4,901.1 This agency has followed up on this trend with increased enforcement. Pregnancy discrimination lawsuits by EEOC have risen from six or fewer per year in the 1990s to 32 in Fiscal Year 2006. We don’t know if pregnancy discrimination itself is on the rise, more pregnant women are staying in the workforce so the incidence of discrimination is up, or just more women are willing to come forward. Many women are increasingly aware of their rights, and more willing to fight to enforce them.

The statistics are brought to life through our claimants in litigation. Many of our claimants have reported managers using words to the effect of “a woman’s place is in the home, not in the office.” Claimants from numerous lawsuits have described how they attempted to time or even hide their pregnancies so that they would not be showing when assignments, bonuses, or promotions were decided. As one claimant in EEOC v. Morgan Stanley 2 stated, a woman is never more visibly a woman – and noticeably different from her male colleagues – than when she is pregnant. And during a trial this past October in EEOC v. Everdry3 , a claimant testified that her manager told her she would be fired if she wore maternity clothes.

Each month, I receive several calls from women who have experienced pregnancy discrimination, and they are among the most desperate employees who seek information about their rights. I’m saddened to find that what should be a joyful, life changing event is unfortunately becoming a crisis threatening their livelihoods and/or careers. And when media coverage of our cases included photographs of me pregnant, I was stunned at how many calls I received from pregnant women looking to me as someone who could understand their situations. While pregnant women are increasingly aware that the Family and Medical Leave Act grants them some rights in the workplace, employees continue to be confused regarding exactly what actions an employer may or may not take when an employee is pregnant or on maternity leave.
While we are getting more charges of pregnancy discrimination, I believe that underreporting of pregnancy discrimination remains a significant problem, as many women are fearful of retaliation and conflicted about pursuing their rights given increased family responsibilities. We need to continue to increase our outreach efforts to make the public as aware of these issues as possible.4 As the Pregnancy Discrimination Act clarified, Title VII’s prohibitions against pregnancy discrimination are subsumed within the broader protected group of “sex.” Consequently, many of the Commission’s own materials, such as charge forms and overviews of the laws we enforce, do not specifically refer to pregnancy as a possible basis for discrimination. Similarly, many companies have extensive anti-discrimination policies that contain no reference to pregnancy discrimination or to employees’ rights while on maternity leave.

Unfortunately, we have found that in many instances, employers’ discriminatory behavior does not end with the birth of a child. In some instances, employers’ stereotypical attitudes about new mothers’ abilities to perform their jobs remain a reality, and leave many women insecure about their chances of successfully resuming their careers after childbirth. I have heard from dozens of women that when they return to work after giving birth they are met with the assumptions that they are only working out of economic necessity and that their true desires would be to stay at home, rather than wanting to succeed or advance in their jobs While I continue to hear from numerous women that having their first child meant their career was over, I am hearing more and more from women that their employers only started treating them differently when they had their second or even third child.

New York District Office Litigation

In recent years, the New York District Office has successfully resolved pregnancy lawsuits involving maternity leave, which foreshadowed the emerging theory of caregiver discrimination. For example, in 2002, the Commission resolved EEOC v. Bell Atlantic,5 in which we alleged that defendants gave men, as well as women who adopted children, 30 days leave and accrual of service credit pursuant to a “care for newborn children” program, but did not permit women who had received maternity leave after giving birth to participate in that program and receive those benefits. The denial of service credits for the time that women were on maternity leave affected, among other things, the women’s eligibility for early retirement. 6

EEOC v. Morgan Stanley has been called a “glass ceiling” case by some; it could also be called a “maternal wall” case. In that case, the Commission alleged that, in addition to discrimination in pay and promotion, defendant also discriminated against female employees regarding pregnancy, maternity leave, and family status, and that women who became pregnant and had children were passed up for promotion or otherwise treated less favorably than their colleagues.

Some of our smaller cases tell a common story faced by thousands of women each year, regardless of geography, type of job, or other life circumstances. A case we filed in 2003, EEOC v. John Harvard’s Brew House,7 received unprecedented national television coverage for a case of its type, I believe because the public and the media were finally ready to hear the unfortunately typical story of a pregnant woman. That case charged that the career of Jennifer James as a manager-in-training of a restaurant abruptly ended when she told her employer she was pregnant: she was told to “consider her options” and when she insisted on continuing her pregnancy, she was dropped from a manager training program and ultimately discharged. At the time the lawsuit was filed, Ms. James said: “I was always told how joyous it was to become a mother. Rather than experience joy, I felt only fear, and like a failure, as my career was terminated.” In EEOC v. Rehab Resources,8 we alleged that the employer refused to allow Charging Party Lori Dawley-Fields to return to work after a maternity leave, and instead, replaced her with the non-pregnant temporary employee who had covered for her in her absence.

We are currently litigating a case, EEOC v. Ventiv Pharma Services,9 alleging that the defendant pharmaceutical marketing company denied pregnant salespersons requested leaves of absences ranging from eight to 14 weeks, while granting similar and even longer leaves to a larger group of non-pregnant employees for other medical reasons. When the female employees could not or would not return to work, Ventiv fired them, while permitting non-pregnant employees throughout the United States who took leaves for other reasons to continue their careers and return to their sales jobs with the company. And just last month we filed EEOC v. New York State Department of Correctional Services,10 alleging that when pregnant women were on leave for a work-related injury and receiving worker’s compensation benefits, the department routinely converted their leave to maternity leave, a lesser benefit, upon the birth of their children.

Emerging Issues of Discrimination Against Caregivers

Not only are the number of charges and lawsuits alleging pregnancy discrimination increasing, but the legal theories behind them are evolving as well. Although the Commission is not formally tracking such allegations, after the Second Circuit decision in Back v. Hastings on Hudson Union Free School District,11 we in the field offices have seen a dramatic increase in charges which allege that women are being subject to sex discrimination because they are the caregivers of young children.12 In the past, we saw women discriminated against at two points in their pregnancies, either at the time they disclosed the pregnancy, or near the end. Now we are seeing a third point—after they have a child. This makes no business sense, and is becoming one reason we are here today to discuss caregiver discrimination.

A sampling of current charges in the New York District is illustrative. We are currently investigating several charges where charging parties allege that they were denied flexible work schedules requested for child care purposes while other employees were granted such schedules for other reasons. We hear from another charging party that her pay decreased after she became pregnant and that when she returned from maternity leave she was told that her career was “paused” because she had a child, and that she would eventually move up again – at that time she was demoted and replaced by a part-time male employee.

Other Commission offices are receiving similar charges and two have already filed lawsuits alleging sex discrimination against caregivers. The Houston District Office is currently litigating EEOC v. The Montalbano Group of Metairie, Inc.,13 alleging that the employer, a Louisiana-based advertising and public relations company, engaged in unlawful pregnancy discrimination by firing Charging Party Michelle King, Ms. King began working for Montalbano, in Metairie, Louisiana in 1999 as an executive assistant and rose to the level of Vice President. In 2003, the company asked her to head up a new office in Tampa. A few short months after Ms. King informed the company’s owner that she was pregnant, the owner informed Ms. King that he was going to terminate her employment, stating in an email: “Right now I feel the best thing to do is for you to have your baby and for the next three months nurture him or her and we’ll discuss coming back probably around April or May. There is no way you can be a good mother while achieving what I aspire in Tampa.”

The Chicago District Office is currently litigating EEOC v. Midwest Emergency Associates,14 charging that a company which provides physicians to work in a hospital emergency room discriminated against Dr. Margaret Lynch by demoting her from her position as Assistant Director of the hospital Emergency Room and denying her owner/partner status because of her gender and after she took pregnancy leaves.

Another category of cases relevant to today’s topic is often referred to as “ADA association” cases. In these cases, the charging parties allege that their employers have discriminated against them because of their association with a person with a disability, often a family member. Over the past ten years, “ADA association” charges have remained fairly constant at approximately 200 per year.15 In the late 1990s, the Commission litigated a case, McGrenaghan and EEOC v. St. Denis School,16 involving a school teacher who gave birth to a child with profound disabilities that required that he receive 24-hour nursing care. When the teacher returned to work, she was demoted to part-time work as a half day teacher and a half day resource aid. There was evidence that the school principal told the employee that she was lucky she was permitted to return to work part-time because she should be spending time with her child. The Court denied the employer’s motion for summary judgment on the claims that the employer violated the ADA on the basis of the employee’s association with a person with disabilities, and the “sex-plus” claim that the employer violated Title VII by discriminating against women who have children with disabilities.

Conclusion

We have more work to do regarding work/family balance. We will certainly continue to see increasing numbers of charges filed by caregivers and employees that assert the right to an appropriate work/family balance. The field offices are doing more and more outreach to try to educate employers and employees about their obligations and rights under our anti-discrimination laws, and we are attempting to resolve complaints of discrimination through voluntary compliance during mediation and pre-suit conciliation. When these efforts fail, the Commission needs to continue to serve its law enforcement role through a vigorous litigation program. Our nation cannot afford to lose the valuable contributions of employees who wish to succeed in the workplace but who are subjected to unlawful discrimination because of unfounded stereotypes about caregivers. Thank you for giving me the opportunity to address this important issue.

Footnotes

1 The issues most frequently alleged in pregnancy bias charges are discharge (more than half), terms and conditions of employment, and maternity. The industries accounting for the most pregnancy charge filings (more than half) are Services and Retail – a statistical trend that has held steady since Fiscal Year 1992.

2 No. 01-8421 (SDNY), settled on July 15, 2004 after jury selection with a Consent Decree providing $54 million to claimants plus injunctive relief, including adoption of a policy addressing paid parental leave and the provision of management training on issues including pregnancy, maternity leave and maternal status.

4In the past several years, there has been a noticeable increase in the number of events (and the number of people reached) where the specific topic was pregnancy discrimination. Pregnancy as a specific topic was discussed at 90 events reaching 6,670 people in Fiscal Year 2004, compared to 23 events reaching 1,258 people in Fiscal Year 2003.

5 2002 U.S. Dist. LEXIS 19156, 97-6723 (S.D.N.Y. October 9, 2002). The Consent Decree provided an estimated $48.9 million in benefits for women employees who had been denied service credits while on maternity leave in the case.

6 Courts are split on the application of the Pregnancy Discrimination Act (PDA) to employment decisions made after the adoption of the PDA that perpetrated discriminatory denial of service credit benefits for maternity leave taken before adoption of the PDA. Compare Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1991) and Woods v. Qwest Info. Techs., 334 F.Supp.2d 1187 (D. Neb. 2004) (finding PDA violation) with Leffman v. Sprint Corp., ___ F.3d ___, 2007 U.S. App. LEXIS 7394 (6th Cir. March 30, 2007)(finding no PDA claim) and Ameritech Benefit Plan Comm. v. Commun. Workers of Am., 220 F.3d 814 (7th Cir. 2000), cert. denied, 531 U.S. 1127 (2001)(finding no PDA claim). A split three-judge panel of the Ninth Circuit held in Hulteen v. AT&T, 441 F.3d 653, 664 (9th Cir. 2006) that it was not bound by Pallas and that denial of service credit benefits for maternity leave taken before the adoption of the Pregnancy Discrimination Act was not actionable. The Ninth Circuit has granted rehearing en banc in Hulteen, 455 F.3d 973 (9th Cir. 2006), stating that “[t]he three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ” The Commission is appearing as amicus in Hulteen.

7 No. 03-3800 (EDNY), settled on June 1, 2004 with a Consent Decree providing $145,000 and a positive letter of recommendation to Ms. James, as well as a revised non-discrimination policy provided to all employees and again to each employee who requests leave under the FMLA.

8 No. 05-398 (NDNY), settled on October 25, 2005 with a Consent Decree providing for $27,000 and injunctive relief.